This is an application by way of a notice on Form 11 for an ancillary relief. The petitioner had filed a petition for a judicial separation, and had made this application for ancillary relief, being part of the petition before the Research Officer. The respondent/appellant had raised preliminary objections at the hearing and the objections were overruled by the Research Officer. The appellant now appealed against the ruling.

It is trite law that an appeal to a judge in chambers from a decision of the Registrar or Research Officer, the court does not exercise an appellate jurisdiction but is by way of a rehearing of the case and the judge treats the matter as though it comes before him for the first time. The judge is, therefore, not confined to points taken before the Research Officer, so that the rule about new points being not generally open to an appellant to take on an appeal [2] does not apply. Tuan Hj. Ahmad Abdul Rahman v Arab Malaysian Finance Bhd (1996) 1 MLJ 30 [FC]; Blundell v Rimmer (1971) 1 All ER 1072; (1971) 1 WLR 123 and Seloga Jaya Sdn Bhd v Pembenaan Keng Ting (Sabah) Sdn Bhd (1994) 2 MLJ 97 [FC].

The appellant raised 4 grounds for the objection:-

Ground 1

The appellant submitted that there was no intitulement in the application which is therefore misleading and embarrassing, and ought to be struck out. He cited the Court of Appeal case of Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman (1995) 1 MLJ 457 as the authority on this point.

The counsel for the petitioner/respondent replied that the application is made on Form 11 of the Divorce and Matrimonial Proceeding Rules 1980 (hereinafter referred to as "the 1980 Rules"), and it is clear that the rules applicable would be those relevant for the issue of Form 11. It is, therefore, not misleading or embarrassing. Learned counsel further said that Form 11 relates to certain rules under the 1980 Rules, and it can easily be found which of the rules is applicable to the case. This is distinguishable from the Cheow Chew Khoon's case.

In Cheow Chew Khoon's case, the appellant contended that the respondent's application was made under O.89 of the Rules of the High Court 1980 (hereinafter referred to as "RHC") but he admitted in his affidavit that the appellant was a tenant holding over, and therefore the summary procedure under O. 89 was not applicable. The respondent denied that the application was made under O. 89 since it also claimed for reliefs other than vacant possession and contended that it was in fact made under O. 28. The Court of Appeal states that: [3]

"The failure of the Origination Summons to state any particular rule of the Rules of the High Court, its intitulement is wrong and embarrassing. Based on the fundamental principle that a party must not take either his opponent or the court by surprise, an originating process which fails to state with sufficient particularity either in its heading or body, the statute or rule of court under which the court is being moved is liable to be struck out unless it is amended."

It is clear that an originating process requiring an intitulement, it must state with sufficient particularity, either in its heading or in the body, the statute or rule of court under which the court is being moved. Where an application is made as in this case under Form 11, the indication is clear. It is made under the rules which relate to Form 11, and certainly it is not misleading or embarrassing, nor does it take the opponent or the court by surprise.

I rule that this objection is unsustainable.

Ground 2

The application for ancillary relief was served outside the 4-days limit as stipulated in rule 61(1) of the 1980 Rules and it should be set aside under rule 102 (1) thereunder. The respondent states that he received the notice late from the court and, therefore, it was not possible to serve it within the 4-days rule. From the court's record that the said document was returned to the respondent late and as suc